TMI Blog2008 (8) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods are purchased after paying a tax at concessional rate. The intention is to make good at least the loss of tax by providing the minimum penalty. It does not grant any exemption to such dealer holding recognition certificate to dispose of such raw material purchased at concessional rate of tax or without payment of tax in any manner. The raw material has necessarily to be used in the manufacture of the specified goods. On the unused portion of the raw material, may be waste for a dealer, it has to pay the tax by way of penalty as provided for under sub-section (5) of section 4B. It may be in such cases the minimum one. In view of the above discussions, the order of the Tribunal is indefensible and is liable to be set aside so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is sold as a waste which may be raw material for others. The said reply was not found satisfactory either by the assessing officer or by the first appellate authority. The Tribunal by the order under revision has allowed the appeal and set aside the penalty order. The following question of law has been sought to be raised: Whether the Trade Tax Tribunal was legally justified to set aside the penalty order passed by the assessing authority under section 4B(5) of the U.P. Trade Tax Act, 1948 despite the fact that the dealer had clearly acted in contravention of the provisions contained in section 4B of the Act? Heard the counsel for the parties and perused the record. It is not disputed by the dealer-opposite party that a part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the remains of glass-sheet, no permission from the Department was sought for. A learned single Judge of this court in Commissioner of Trade Tax v. Faruqi Glass Industries [2007] UPTC 1098 has held that if a raw material has been purchased by availing of the benefit of exemption/concessional rate of tax and the said raw material has not been utilised for the manufacture of the notified goods, the dealer is liable for penalty under section 4B(5) of the Act. In the case on hand, the Department could not get any tax on the purchase of raw material in view of issuance of form IIIB by the dealer-opposite party. The broken glass or cutlet have been disposed of by the dealer by consignment sale and as such tax could not have been collected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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